Learn About the Law
Get help with your legal needs
FindLaw’s Learn About the Law features thousands of informational articles to help you understand your options. And if you’re ready to hire an attorney, find one in your area who can help.
The PEOPLE, Plaintiff and Respondent, v. Michael CULPEPPER, Defendant and Appellant.
Defendant Michael Culpepper (appellant) was charged with robbery (Pen.Code,1 § 211) with two prior felony convictions. The date of the charged offense was April 14, 1994. Appellant pled no contest to grand theft from the person (§ 487, subd. (c)) and admitted one prior. The other prior was stricken on motion of the district attorney. The trial court sentenced appellant to state prison for five years pursuant to section 667, subdivision (c).
Appellant contends that this sentence under the three strikes legislation violates his right to equal protection because, although he was convicted of theft, the statutory scheme authorizes less conduct credits against his sentence than a person convicted of murder could earn. We affirm the conviction and sentence.
“The first prerequisite to a meritorious claim under the equal protection clause is a showing that the state has adopted a classification that affects two or more similarly situated groups in an unequal manner.” (In re Eric J. (1979) 25 Cal.3d 522, 530, 159 Cal.Rptr. 317, 601 P.2d 549, italics omitted.)
The amendments to section 667 enacted by the Legislature and made effective March 7, 1994, (the so-called three strikes law), do not adopt a classification that affects persons convicted of murder differently than persons convicted of other crimes, including theft. Specifically, subdivision (c)(5) provides: “Notwithstanding any other law, if a defendant has been convicted of a felony and it has been pled and proved that the defendant has one or more prior felony convictions as defined in subdivision (d), the court shall adhere to each of the following: The total amount of credits awarded pursuant to Article 2.5 (commencing with Section 2930) of Chapter 7 of Title 1 of Part 3 shall not exceed one-fifth of the total term of imprisonment imposed and shall not accrue until the defendant is physically placed in the state prison.” Conviction of any felony subjects a defendant to the provisions of section 667, subdivision (c)(5), which governs “habitual criminals.” Thus, appellant's contention is not based on the language of the statute. It is based on the case of In re Diaz (1993) 13 Cal.App.4th 1755, 17 Cal.Rptr.2d 395.
Diaz was one of a series of decisions which grappled with problems arising out of several modifications to the statutes governing conduct credits awarded to convicted murderers. On February 19, 1993, when Diaz was decided, the law was as follows: Habitual or recidivist criminals were covered by section 667.7 which expressly afforded credits to prisoners for work or education. One day's credit was earned for each day in the approved activity and the sentence could be reduced by one-half. (See In re Diaz, supra, 13 Cal.App.4th at p. 1758, 17 Cal.Rptr.2d 395.) Under the authority of In re Oluwa (1989) 207 Cal.App.3d 439, 255 Cal.Rptr. 35, In re Monigold (1988) 205 Cal.App.3d 1224, 1227, 253 Cal.Rptr. 120, and 70 Ops.Cal.Atty.Gen. 49 (1987), first time murderers were sentenced under section 190 which authorized conduct credits at a rate of one day's credit for two days of approved conduct for up to one-third of the sentence. (In re Diaz, supra, 13 Cal.App.4th at pp. 1758–1760, 17 Cal.Rptr.2d 395.)
Also at the time Diaz was decided, the federal case of Brodheim v. Rowland (N.D.Cal.1991) 783 F.Supp. 1245 2 had held that under California law, convicted murderers with prior serious felony convictions were sentenced under section 667.7 while persons convicted of murder who did not have prior convictions were sentenced under section 190. Thus, the California sentencing scheme was unconstitutional on equal protection grounds because it awarded greater credits to a “recidivist murderer” than to a “first time” murderer, and to remedy the constitutional defect all persons convicted of murder were entitled to earn “one-for-one work time credits.” (In re Diaz, supra, 13 Cal.App.4th at pp. 1758–1759, 17 Cal.Rptr.2d 395.)
Diaz arose when several convicted “one time” murderers sentenced to indeterminate life terms under section 190 filed writs of habeas corpus seeking the greater credits. (In re Diaz, supra, 13 Cal.App.4th at pp. 1757–1758, 17 Cal.Rptr.2d 395.) The court held that “the Brodheim decision misinterpreted California law and ․, in fact, convicted murderers are always sentenced under section 190 and not under section 667.7, subdivision (a), the habitual criminal statute.” (In re Diaz, supra, 13 Cal.App.4th at p. 1759, 17 Cal.Rptr.2d 395.)
The Diaz court gave three principal reasons for its decision. (1) “[T]he plain meaning of section 190 is that the statute applies to every person convicted of murder and that such persons must be sentenced under section 190 and receive the punishment that it prescribes” (In re Diaz, supra, 13 Cal.App.4th at p. 1760, 17 Cal.Rptr.2d 395). (2) “Section 190 is an initiative measure which cannot be modified by subsequent legislative enactments not having the requisite majority for altering a voter initiative”; section 667.7 was a subsequent legislative enactment which lacked such majority (13 Cal.App.4th at p. 1760, 17 Cal.Rptr.2d 395). (3) Denying the greater work/education credits “to murderers sentenced under the recidivist statute, section 667.7, fully effectuates the intent of the legislators in passing that statute, which was to lengthen, not to shorten, the sentences of persons falling under section 667.7” (id. at pp. 1760–1761, 17 Cal.Rptr.2d 395).
Thus, as a result of Diaz and the law it accepts and incorporates, at the time section 667 was amended into its present form by the Legislature convicted murderers were eligible to receive credits for up to one-third of their sentence. Section 667, subdivision (c)(5), purports to change the law governing credits for all persons convicted of a felony who have “serious and/or violent” priors.
Appellant argues that Diaz prevents the Legislature from decreasing the credits awarded to convicted murderers and because murder is the most serious crime all legislation to decrease the number of credits awarded against sentences for other crimes must fail under equal protection grounds.
We disagree. First, Diaz is of questionable authority. People v. Jenkins (1994) 28 Cal.App.4th 1659, 1665–1666, 28 Cal.Rptr.2d 576, reaffirmed Diaz and applied it to nonenhancement aspects of sentencing a person convicted of murder with serious priors. The Supreme Court granted a petition for review in Jenkins.
Second, the factors relied on in Diaz lead to a different result regarding the statutory changes involved in the instant case. Although subdivision (c)(5), of section 667 originated with the Legislature, it was reenacted by the voters with the identical language eight months later as section 1170.12, subdivision (a)(5), in Proposition 184 § 1, the “Three Strikes Initiative.” (See and compare In re Oluwa, supra, 207 Cal.App.3d at p. 446 and fn. 6, 255 Cal.Rptr. 35.) The effect of applying section 667, subdivision (c)(5), rather than section 190 would be to lengthen rather than shorten sentences, which was the intent of the Legislature and voters. (See, e.g., § 667, subd. (b).) Thus, on the basis of the reasoning of Diaz, section 667, subdivision (c)(5), effectively amends section 190 to limit the amount of credits that can be awarded to murderers.
Moreover, section 2931 which establishes the category of credits awarded for section 190 crimes, expressly provides in subdivision (d) as follows: “This section shall not apply to any person whose crime was committed on or after January 1, 1983.” On such date, the statutes regarding credits were substantially revised, in part at least, to make it more difficult to earn credits. (See In re Ramirez (1985) 39 Cal.3d 931, 936, 218 Cal.Rptr. 324, 705 P.2d 897; 3 Witkin & Epstein, Cal.Criminal Law (2d ed. 1989) Punishment For Crime, § 1558, pp. 1861–1862.) Section 2931, subdivision (d), was not discussed in Diaz or the cases it relies on because none of them involved appellants who had committed their crimes on or after January 1, 1983. Appellant's crime was committed on April 14, 1994.
Accordingly, for all the above reasons, section 667, subdivision (c)(5), does not adopt a classification that affects two or more similarly situated groups in an unequal manner and there is no violation of equal protection.
The judgment is affirmed.
FOOTNOTES
FN1. All further statutory references are to the Penal Code.. FN1. All further statutory references are to the Penal Code.
2. The Ninth Circuit Court of Appeals vacated the district court's judgment and remanded the case in Brodheim v. Rowland (9th Cir.1993) 993 F.2d 716, 717.
ANDERSON, Presiding Justice.
PERLEY and REARDON, JJ., concur.
A free source of state and federal court opinions, state laws, and the United States Code. For more information about the legal concepts addressed by these cases and statutes visit FindLaw's Learn About the Law.
Docket No: No. A066016.
Decided: February 09, 1995
Court: Court of Appeal, First District, Division 4, California.
Search our directory by legal issue
Enter information in one or both fields (Required)
Harness the power of our directory with your own profile. Select the button below to sign up.
Learn more about FindLaw’s newsletters, including our terms of use and privacy policy.
Get help with your legal needs
FindLaw’s Learn About the Law features thousands of informational articles to help you understand your options. And if you’re ready to hire an attorney, find one in your area who can help.
Search our directory by legal issue
Enter information in one or both fields (Required)